[Federal Register Volume 82, Number 129 (Friday, July 7, 2017)]
[Rules and Regulations]
[Pages 31491-31494]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-14280]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 648

[Docket No. 170314268-7582-0]
RIN 0648-BG68


Fisheries of the Northeastern United States; Recreational 
Management Measures for the Summer Flounder and Scup Fisheries; Fishing 
Year 2017

AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and 
Atmospheric Administration (NOAA), Commerce.

ACTION: Final rule.

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SUMMARY: In this rule, NMFS implements management measures for the 2017 
summer flounder and scup recreational fisheries. The implementing 
regulations for these fisheries require NMFS to publish recreational 
measures for the fishing year. The intent of these measures is to 
constrain recreational catch to established limits and prevent 
overfishing of the summer flounder and scup resources.

DATES: This rule is effective July 7, 2017. The management measures for 
the 2017 summer flounder and scup recreational fisheries are effective 
July 7, 2017, through December 31, 2017.

ADDRESSES: Copies of the Supplemental Information Report (SIR) and 
other supporting documents for the recreational harvest measures are 
available from Dr. Christopher M. Moore, Executive Director, Mid-
Atlantic Fishery Management Council, Suite 201, 800 N. State Street, 
Dover, DE 19901. The recreational harvest measures document is also 
accessible via the Internet at: http://www.greateratlantic.fisheries.noaa.gov.
    The Final Regulatory Flexibility Analysis (FRFA) consists of the 
IRFA, public comments and responses contained in this final rule, and 
the summary of impacts and alternatives contained in this final rule. 
Copies of the small entity compliance guide are available from John K. 
Bullard, Regional Administrator, Greater Atlantic Region, National 
Marine Fisheries Service, 55 Great Republic Drive, Gloucester, MA 
01930-2298.

FOR FURTHER INFORMATION CONTACT: Emily Gilbert, Fishery Policy Analyst, 
(978) 281-9244.

SUPPLEMENTARY INFORMATION: 

Summary of Final Management Measures

    In this rule, NMFS specifies management measures for the 2017 
summer flounder and scup recreational fisheries consistent with the 
recommendations of the Mid-Atlantic Fishery Management Council and the 
Atlantic States Marine Fisheries Commission.
    NMFS is implementing measures that apply in the Federal waters of 
the exclusive economic zone. These measures apply to all federally-
permitted party/charter vessels with applicable summer flounder and 
scup permits, regardless of where they fish, unless the state in which 
they land implements measures that are more restrictive. These measures 
are intended to achieve, but not exceed, the previously established 
2017 recreational harvest limits for scup published on December 28, 
2015 (80 FR 80689), and for summer flounder published on December 22, 
2016 (81 FR 93842).

Summer Flounder Recreational Management Measures

    NMFS is implementing conservation equivalency to manage the 2017 
summer flounder recreational fishery, as proposed on April 19, 2017 (82 
FR 18411). These measures are consistent with the recommendation of the 
Council and Commission. Additional information on the development of 
the 2017 measures is provided in the proposed rule and not repeated 
here.

[[Page 31492]]

    Conservation equivalency, as established by Framework Adjustment 2 
(July 29, 2001; 66 FR 36208), allows each state to establish its own 
recreational management measures (possession limits, minimum fish size, 
and fishing seasons) to achieve its state harvest limit established by 
the Commission from the coastwide recreational harvest limit, as long 
as the combined effect of all of the states' management measures 
achieves the same level of conservation as would Federal coastwide 
measures. Framework Adjustment 6 (July 26, 2006; 71 FR 42315) allowed 
states to form regions for conservation equivalency in order to 
minimize differences in regulations for anglers fishing in adjacent 
waters.
    The Commission implemented Addendum XXVIII to its Summer Flounder 
Fishery Management Plan (FMP) to continue regional conservation 
equivalency for fishing year 2017. The Commission has adopted the 
following regions, which are consistent with the 2016 regions: (1) 
Massachusetts; (2) Rhode Island; (3) Connecticut and New York; (4) New 
Jersey; (5) Delaware, Maryland, and Virginia; and (6) North Carolina. 
To provide the maximum amount of flexibility and to address the state-
by-state differences in fish availability, each state in a region is 
required by the Council and Commission to establish fishing seasons of 
the same length, with identical minimum fish sizes and possession 
limits. Addendum XXVIII requires each state or region, with the 
exception of North Carolina, to increase the 2017 summer flounder 
minimum size by 1 inch (2.5 cm) from the 2016 size limit. The 2017 
measures also reduce the bag limit for most of the states and regions, 
while the season length remains the same as in 2016. More information 
on this addendum is available from the Commission (www.asmfc.org).
    The Commission certified, by letter dated April 5, 2017, that the 
Addendum XXVIII measures required to be implemented by individual 
states and regions, when combined, are the conservation equivalent of 
coastwide measures that would be expected to result in the 2017 
recreational harvest limit being achieved, but not exceeded.
    Following this determination, New Jersey proposed and subsequently 
implemented on May 25, 2017, alternative measures for its state waters 
(i.e., 18-inch (45.7-cm) fish size, 3-fish bag limit, and a 104-day 
season). The Summer Flounder Management Board requested these measures 
be reviewed by the Commission's Technical Committee when they were 
proposed. The Technical Committee found New Jersey's measures are not 
the conservation equivalent of Addendum XXVIII measures. Using the 
Technical Committee's information, the Management Board found that New 
Jersey's measures were not conservationally equivalent to Addendum 
XXVIII and recommended New Jersey be found out of compliance with the 
Commission's FMP. The Commission's Interstate Fisheries Management 
Policy Board and Commission as a whole met on June 1, 2017, to consider 
the Management Board's non-compliance recommendation for the state of 
New Jersey. Both the Policy Board and the Commission found New Jersey 
out of compliance with the Commission's FMP for summer flounder. The 
Commission has referred the matter to NMFS under delegation of 
authority from the Secretary of Commerce, for federal non-compliance 
review under the provisions of the Atlantic Coastal Fisheries 
Cooperative Management Act. NMFS will review the Commission's non-
compliance referral through a separate process.
    Based on the April 5, 2017, recommendation of the Commission, we 
find that the recreational summer flounder fishing measures required to 
be implemented for 2017 in state waters are, collectively, the 
conservation equivalent of the season, minimum size, and possession 
limit prescribed in Sec. Sec.  648.104(b), 648.105, and 648.106(a). 
According to Sec.  648.107(a)(1), vessels subject to the recreational 
fishing measures are not subject to Federal measures, and instead are 
subject to the recreational fishing measures implemented by the state 
in which they land. Section 648.107(a) is amended through this rule to 
recognize state-implemented measures as conservation equivalent of the 
coastwide recreational management measures for 2016. As mentioned 
above, New Jersey has not implemented Addendum XXVIII's required 
measures. NMFS' review and findings regarding the non-compliance 
recommendation for New Jersey will begin with publishing a notice in 
the Federal Register.
    In addition, this action implements default coastwide measures (a 
19-inch (48.3-cm) minimum size, 4-fish possession limit, and June 1 
through September 15 open fishing season), that become effective 
January 1, 2018, when the 2017 conservation equivalency program 
expires. These measures will remain effective until replaced by the 
2018 recreational management measures in the spring of next year.

Scup Recreational Management Measures

    This rule maintains status quo scup measures for the 2017 fishery: 
A 9-inch (22.9-cm) minimum fish size, 50-fish per person possession 
limit, and year-round season.

Comments and Responses

    On April 19, 2017, NMFS published the proposed 2017 summer flounder 
and scup recreational management measures for public notice and 
comments. NMFS received 17 comments, of which 14 were related to 
measures provided in the proposed rule. New Jersey submitted a comment 
letter focused on their dissatisfaction with the specific measures 
outlined in Addendum XXVIII. New Jersey's concerns will be considered 
through the non-compliance proceedings and are not responded to in this 
action. Other comments received related to preferences for lower quotas 
for summer flounder and scup, as well as opinions that the Council 
favors the commercial industry.
    No changes to the proposed specifications were made as a result of 
these comments.
    Comment 1: One commenter from the State of Rhode Island stated that 
the measures contained within Addendum XXVIII were not restrictive 
enough to constrain catch within the 2017 summer flounder harvest 
limit. The commenter noted concern that more restrictive measures 
proposed by the State of Rhode Island were rejected by the Commission's 
Management Board.
    Response: The Commission and its Technical Committee has expertise 
in determining whether or not state-implemented measures are 
conservationally equivalent to those measures recommended by the 
Council. The Commission has determined that the addendum's measures 
achieve conservation equivalency and are likely to constrain catch 
within the 2017 recreational harvest limit.
    Comment 2: Eleven commenters raised concerns about state-specific 
summer flounder regulations which are outside the scope of this action, 
each specifically requesting that the State of Delaware not be 
penalized for anything that results from New Jersey's public opposition 
to the Commission's Addendum.
    Response: As previously mentioned, the non-compliance determination 
process for New Jersey will happen outside of this action. Delaware has 
implemented measures outlined in the Commission's Addendum XXVIII. No 
further action is required by the State of Delaware for 2017.

[[Page 31493]]

    Comment 3: One commenter was concerned about the summer flounder 
precautionary default season, stating that he would prefer the season 
to begin in May, rather than July.
    Response: Because the Commission did not request that the 
precautionary default measures be applied to any state, these measures 
are not applicable for 2017. Instead, this rule implements the 
Commission and Council recommended measures, as previously proposed, 
for conservation equivalency in 2017. The coastwide default measures 
will be effective to the start of the 2018 fishing year.

Classification

    The Administrator, Greater Atlantic Region, NMFS, determined that 
this final rule is necessary for the conservation and management of the 
summer flounder fishery and that it is consistent with the Magnuson-
Stevens Fisheries Conservation and Management Act (Magnuson-Stevens 
Act) and other applicable laws.
    The Assistant Administrator for Fisheries, NOAA, finds good cause 
under 5 U.S.C. 553(d)(3) to waive the 30-day delay of effectiveness 
period for this rule, to ensure that the final management measures are 
in place as soon as possible. A delay in this rule's effectiveness 
would unfairly prejudice federally permitted charter/party vessels. 
Recreational fisheries are already underway for summer flounder and 
scup. The linchpin of NMFS's decision whether to proceed with the 
coastwide measures or adopt the conservation equivalent measures is 
advice from the Commission following review of the individual state 
plans. Rulemaking has been delayed while final information regarding 
the status of New Jersey through the Commission's conservation 
equivalency process has been evaluated. The Commission's Summer 
Flounder Management Board met on June 1, 2017, to discuss whether or 
not to find New Jersey out of compliance with Addendum XXVIII. NMFS did 
not want to cause public confusion by releasing a final rule prior to 
the Commission's final determination on New Jersey's summer flounder 
management measures.
    Based on historic effort and landings information, and the 
importance of summer flounder as a recreational fishery target species, 
participation and landings are expected to be high from the onset of 
the fishery that is already underway. Party and charter vessels from 
the various states are the largest component of the recreational 
fishery that fish in the EEZ. The Federal coastwide regulatory measures 
for summer flounder that were codified last year remain in effect until 
the 2017 recreational measures are made effective. These measures do 
not achieve the necessary reduction in recreational landings to 
constrain the fishery to the 2017 recreational harvest limit. Although 
the states' summer flounder fisheries are already open, additional 
delay in implementing the measures of this rule will increase confusion 
on what measures are in place in Federal waters. This will disadvantage 
Federally permitted charter/party vessels and increase the likelihood 
of illegal landings due to misunderstood regulations. The resulting 
disconnect in the regulations that exist until this rule's measures are 
implemented may potentially compromise the mortality objectives of the 
summer flounder fishery.
    Unlike actions that require an adjustment period to comply with new 
rules, charter/party operators will not have to purchase new equipment 
or otherwise expend time or money to comply with these management 
measures. Rather, complying with this final rule simply means adhering 
to the published management measures for each relevant species of fish 
while the charter/party operators are engaged in fishing activities.
    For these reasons, the Assistant Administrator finds good cause to 
waive the 30-day delay and to implement this rule upon publication in 
the Federal Register.
    This final rule has been determined to be not significant for 
purposes of Executive Order 12866.
    A FRFA was prepared pursuant to 5 U.S.C. 604(a), and incorporates 
the IRFA, a summary of any significant issues raised by the public 
comments in response to the IRFA and NMFS's responses to those 
comments, and a summary of the analyses completed to support the 
action. A copy of the SIR/IRFA is available from the Council (see 
ADDRESSES).
    The classification to the proposed rule included a detailed summary 
of the analyses contained in the IRFA, and that discussion is not 
repeated here.

Final Regulatory Flexibility Analysis

A Summary of Significant Issues Raised by the Public in Response to the 
Summary of the Agency's Assessment of Such Issues, and a Statement of 
Any Changes Made in the Final Rule as a Result

    Our responses to all of the comments received on the proposed rule, 
including those that raised significant issues with the proposed 
action, can be found in the Comments and Responses section of this 
rule. Aside from the comment from the State of New Jersey that will be 
considered through a separate process, none of the comments received 
raised specific issues regarding the economic analyses summarized in 
the IRFA. No changes to the proposed rule were required to be made as a 
result of public comments.

Description and Estimate of Number of Small Entities to Which the Rule 
Will Apply

    Available ownership data for the for-hire fleet indicate that there 
were 411 for-hire affiliate firms generating revenues from fishing 
recreationally for various species during the 2013-2015 period, all of 
which are categorized as small businesses. Although it is not possible 
to derive what proportion of the overall revenues came from specific 
fishing activities, given the popularity of summer flounder and scup as 
a recreational species, it is likely that revenues generated from 
summer flounder and scup recreational fishing are important for some, 
if not all, of these firms. The three-year average (2013-2015) gross 
receipts for these small entities ranged from $10,000 for 121 entities 
to over $1 million for 10 entities (highest value was $2.7 million).

Description of Projected Reporting, Recordkeeping, and Other Compliance 
Requirements

    No additional reporting, recordkeeping, or other compliance 
requirements are included in this final rule.

Description of the Steps the Agency Has Taken To Minimize the 
Significant Economic Impact on Small Entities Consistent With the 
Stated Objectives of Applicable Statutes

    In seeking to minimize the impact of recreational management 
measures (minimum fish size, possession limit, and fishing season) on 
small entities (i.e., Federal party/charter permit holders), NMFS is 
constrained to implementing measures that meet the conservation 
objectives of the FMP and Magnuson-Stevens Act requirements. The only 
other summer flounder management measure alternative considered was the 
less restrictive status quo alternative (i.e., the non-preferred 
coastwide 2016 measures). State-specific implications of the no-action 
(coastwide) alternative of an 18-inch (45.7-cm) minimum fish size, a 4-
fish bag limit, and closed season of May 1 through September 30, would 
not achieve the mortality objectives required by the FMP, and, 
therefore,

[[Page 31494]]

cannot be continued for the 2017 fishing season.
    The conservation equivalency approach implemented by this action 
allows states some degree of flexibility in the specification of 
management measures, unlike the application of one set of uniform 
coastwide measures. The degree of flexibility available to states under 
conservation equivalency is constrained to a combined suite of minimum 
fish size, per angler possession limit, and fishing season that will 
likely constrain catch to the 2017 recreational harvest limit. This 
provides the opportunity for states to construct measures that achieve 
the conservation objective while providing a state-specific set of 
measures in lieu of the one-size-fits-all coastwide measure.

Small Entity Compliance Guide

    Section 212 of the Small Business Regulatory Enforcement Fairness 
Act of 1996 states that, for each rule or group of related rules for 
which an agency is required to prepare a FRFA, the agency shall publish 
one or more guides to assist small entities in complying with the rule, 
and shall designate such publications as ``small entity compliance 
guides.'' The agency shall explain the actions a small entity is 
required to take to comply with a rule or group of rules.
    As part of this rulemaking process, a small entity compliance guide 
will be sent to all holders of Federal party/charter permits issued for 
the summer flounder and scup fisheries. In addition, copies of this 
final rule and guide (i.e., permit holder letter) are available from 
NMFS (see ADDRESSES) and at the following Web site: http://www.greateratlantic.fisheries.noaa.gov.

List of Subjects in 50 CFR Part 648

    Fisheries, Fishing, Reporting and recordkeeping requirements.

    Dated: July 3, 2017.
Chris Oliver,
Assistant Administrator for Fisheries, National Marine Fisheries 
Services.

    For the reasons set out in the preamble, 50 CFR part 648 is amended 
as follows:

PART 648--FISHERIES OF THE NORTHEASTERN UNITED STATES


0
1. The authority citation for part 648 continues to read as follows:

     Authority:  16 U.S.C. 1801 et seq.

0
 2. In Sec.  648.104, paragraph (b) is revised to read as follows:


Sec.  648.104  Summer flounder minimum fish sizes.

* * * * *
    (b) Party/charter permitted vessels and recreational fishery 
participants. Unless otherwise specified pursuant to Sec.  648.107, the 
minimum size for summer flounder is 19 inches (48.3 cm) TL for all 
vessels that do not qualify for a moratorium permit under Sec.  
648.4(a)(3), and charter boats holding a moratorium permit if fishing 
with more than three crew members, or party boats holding a moratorium 
permit if fishing with passengers for hire or carrying more than five 
crew members.
* * * * *

0
 3. Section 648.105 is revised to read as follows:


Sec.  648.105  Summer flounder recreational fishing season.

    Unless otherwise specified pursuant to Sec.  648.107, vessels that 
are not eligible for a moratorium permit under Sec.  648.4(a)(3), and 
fishermen subject to the possession limit, may fish for summer flounder 
from June 1 through September 15. This time period may be adjusted 
pursuant to the procedures in Sec.  648.102.

0
 4. In Sec.  648.106, paragraph (a) is revised to read as follows:


Sec.  648.106  Summer flounder possession restrictions.

    (a) Party/charter and recreational possession limits. Unless 
otherwise specified pursuant to Sec.  648.107, no person shall possess 
more than four summer flounder in, or harvested from, the EEZ, per trip 
unless that person is the owner or operator of a fishing vessel issued 
a summer flounder moratorium permit, or is issued a summer flounder 
dealer permit. Persons aboard a commercial vessel that is not eligible 
for a summer flounder moratorium permit are subject to this possession 
limit. The owner, operator, and crew of a charter or party boat issued 
a summer flounder moratorium permit are subject to the possession limit 
when carrying passengers for hire or when carrying more than five crew 
members for a party boat, or more than three crew members for a charter 
boat. This possession limit may be adjusted pursuant to the procedures 
in Sec.  648.102.
* * * * *

0
 5. In Sec.  648.107, introductory text to paragraph (a) and paragraph 
(b) are revised to read as follows:


Sec.  648.107  Conservation equivalent measures for the summer flounder 
fishery.

    (a) The Regional Administrator has determined that the recreational 
fishing measures proposed to be implemented by the states of Maine 
through North Carolina for 2017 are the conservation equivalent of the 
season, minimum size, and possession limit prescribed in Sec. Sec.  
648.102, 648.103, and 648.105(a), respectively. This determination is 
based on a recommendation from the Summer Flounder Board of the 
Atlantic States Marine Fisheries Commission.
* * * * *
    (b) Federally permitted vessels subject to the recreational fishing 
measures of this part, and other recreational fishing vessels 
registered in states and subject to the recreational fishing measures 
of this part, whose fishery management measures are not determined by 
the Regional Administrator to be the conservation equivalent of the 
season, minimum size and possession limit prescribed in Sec. Sec.  
648.102, 648.103(b), and 648.105(a), respectively, due to the lack of, 
or the reversal of, a conservation equivalent recommendation from the 
Summer Flounder Board of the Atlantic States Marine Fisheries 
Commission shall be subject to the following precautionary default 
measures: Season--July 1 through August 31; minimum size--20 inches 
(50.8 cm); and possession limit--two fish.

[FR Doc. 2017-14280 Filed 7-6-17; 8:45 am]
 BILLING CODE 3510-22-P